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Alice sees John attempting to steal her car. For some reason, instead of calling the police, she says "I'll give you $1,000 tomorrow if you don't steal my car." John agrees.

Scenario 1

Alice gives John $1,000 and he doesn't steal the car. Has either of them committed a crime (e.g. extortion)?

Scenario 2

One of them breaches the contract and the other sues. Is there consideration for a valid contract?

Scenario 2A

Alice does not give John the money the next day. Can he sue her for breach of contract? Can he legally take her car?

Scenario 2B

Later that day, before the money is due, John steals the car. Can Alice sue for breach of contract, in addition to the typical theft-related claims?

Scenario 2C

The next day, after Alice gives him the money, John steals her car. Can she sue to get the $1,000 back?

3 Answers 3

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Forbearance from action can be consideration, but it must be forbearance from something that is one's legal right. It is sufficient that a person has restricted their lawful freedom of action. See Hamer v. Sidway, (1891) 124 NY 538.

A promise to not do something that one has no right to do in the first place is not consideration. Throughout your entire spectrum of examples:

  • there is no contract to breach;
  • the intitial attempted theft was an offence;
  • absent consent, it will never be lawful for John to take the car;
  • any money accepted by John is likely an unjust enrichment.
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The promise is not sufficient consideration. The Pre-existing duty rule, coming from Stilk v Myrick [1809] EWHC KB J58 is that performance of a pre-existing duty does not amount to good consideration to support a valid contract. Everyone has a pre-existing duty to not steal a car: the purported contracts adds nothing. Therefore there is no contract, no breach, and John has no right to Alice's money.

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Alice is not bound by her promise

In , unilateral promises are enforceable. A contract does not require reciprocal consideration, and therefore, even if John’s promise to not break the law amounts to nothing, Alice’s promise has to be looked at.

Yet, if Alice consented under "violence", then her promise is void (article 1130 du Code Civil). "Violence" is defined at article 1140:

Il y a violence lorsqu'une partie s'engage sous la pression d'une contrainte qui lui inspire la crainte d'exposer sa personne, sa fortune ou celles de ses proches à un mal considérable.

There is violence when either party commits under a constraint that makes him or her fear to expose his or her person or wealth or that of others to a large danger.

Clearly, Alice only promised John $1000 under the threat of having her car stolen, hence her consent is void. John has no legal recourse against Alice in scenario 2A, neither for the money she promised her, nor for any actions he took in reliance of that (void) promise.

John is guilty of extortion in all scenarios

Code Pénal, article 312-1:

L'extorsion est le fait d'obtenir par violence, menace de violences ou contrainte soit une signature, un engagement ou une renonciation, (...)

Extorsion is when one obtains by violence, threat of violence of constraint either a signature, a promise or renunciation, (...)

In all scenarios, John has obtained a promise for money by his threat to steal the car. It does not matter that actually obtains money or a car, or that he intended to steal the car and only switched to extortion in the heat of the moment.

Alice can claim compensation for anything John took

Civil liability comes from a three-prong test of 1. fault, 2. damage, and 3.connection between fault and damage.

Per the above, John’s conduct is illegal (1). Any money or property that changes hand in the various scenarios does so as an immediate consequence of John’s actions (3), and to Alice's detriment (2).

Therefore, John has civil liability at least for the value of the car and/or $1000 that he obtained from Alice.

If Alice had additional expenses (such as moving her car into a guarded parking lot), I would expect those not to qualify, because there is no clear causal connection between those costs and John’s actions (3).

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  • Common Law has a similar exception as a contracts made under duress are considered null and void, and any part of a contract that authorizes one party to commit a crime would also be null and void. In this part, the full contract would not be rendered null and void, so long as other parts of the contract are legal activities. It would only allow for a breech of contract with regards to terms that were illegal actions without enforcement. Duress will render a contract null and void in it's entirety.
    – hszmv
    Feb 6, 2023 at 14:12
  • @MartinBonnersupportsMonica thanks, I fixed it.
    – KFK
    Feb 6, 2023 at 14:51

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